Posted
by
CmdrTaco
on Tuesday August 16, 2005 @09:02AM
from the i'll-believe-it-when-i-see-it dept.

willie3204 was one of several readers who noticed this story about Microsoft cashing in on the iPod Patent that they apparently beat Apple to. Since this song looks to be played to the tune of $10/iPod, I imagine someone will be singing the appeal song.

1.) I'm confused at how this works. Apple introduced the iPod in 2001, filed for a patent in July of 2002, and was beat by Microsoft for the patent by two months, according to this article. But if the technology utilized in the iPod is infringing on the patent filed for in April/May of 2002, how can the iPod itself constitute prior art, seeing as it was already shipping. How does that work?

2.) The last sentence of the article states, So far, 21 million iPods have been sold worldwide, 18 million in the last year alone. Is THAT true? were there only 3 million iPods in the hands of consumers prior to January, 2004?

Apple won't just give in to this easily. At the same moment, Microsoft is sore that they haven't been able to break iTunes success, or get into the portable audio market as well as the iPod has. They've known about this patent issue for a while, I'm sure, they just had no drive to take this to the limit. Anyhow, I'm sure people can agree that this isn't a done and done deal. How many people think Apple would simply pay the fees? or that this has to do with the impending Apple x86 battle with windows?

AFAIK licensing a patent is not compulsory. They could demand compensation for ALL of the ipods already sold (before the patent was granted hehehehe) and then forbid Apple from making more ipods.

Apple deserves this - they have been a strong supporter of the patent system - now they will see that what it really boils down to is that the more money you have for lawyers the more money you can extract from ny corporation with less money for lawyers. Essentially, lawyers have replaced soldiers.

My own theory is that Apple declared War on Microsoft when they announced their intention to release an x86 version of OS X. The OS is the powerhouse of Apple's future success. This could be a very serious competitor to Microsoft Windows. Really, who isn't interested in trying a polished functional alternative to XP? Now Apple's opening salvoes have been returned by Microsoft pulling this licensing garbage.

1. Steal Apple's technology 2. File a patent before they can 3. Profit!

Erm, what am I missing here? Apple introduced the iPod in November, 2001. MS applied for the patent in May, 2002. If they are claiming that th iPod is in violation of their patent, wouldn't the fact that the iPod was released prior to the filing date at least be considered prior art???!?!?

Something seems amiss here, and I don't mean the obvious part about (ab)using patents in this manner. I'm talking about the way patent "dates" are handled under the US system, which is different than it is just about anywhere else in the world. First, from TFA we have:

Lawyers at Bill Gates' firm filed a patent for technology behind the hugely successful digital music player two months before Apple.

immediately followed by:

The US Patent Office has ruled that Microsoft has the right to charge competitors a licence fee for each iPod sold.

The misleading bit is that this is a non-sequitur; the USPTO does not consider the filing date as material. The date of claimed invention is the only date that matters in the US.

So, it seems this must have been decided based on something other than the filing dates. Perhaps some other technology within the iPod was "invented" earlier by Microsoft, but then it's quite misleading to imply that the two-month difference in filing dates was the issue. Plus, as I've mentioned elsewhere, it's not up to the USPTO anyway to decide who has what rights in the case of a conflict; the courts decide these matters in the US.

It's important to note that TFA is a UK source, so there simply may be some confusion and assumptions made based on their local patent rules.

As I at least hold a US patent, perhaps I should try and explain that it is based on date of INVENTION, folks. Microsoft is (apparently) claiming to have invented something before Apple. To prove this, they will need engineer's notes and concepts, drawings etc. which provably originate from an invention date.

Of course, the cost of forgery is immeasurably less than the cost of losing a really big patent fight: as Lord MacAulay noted many years ago, in India there were even companies in Bombay that obligingly kept stacks of paper and ink for different years up to about 40 years back, along with official government seals, so they could do you anything you wanted. This is the major weakness of the US system, i.e. the incentive to fraud is disproportionate to the risk. The weakness of the European system (first to file) is of a thief stealing an invention and filing it first.

The inability or unwillingness of the EC to understand this is at the root of the problem with software patents shows that the last people to leave in charge of technology are civil servants and lawyers.

The United States has a "first-to-invent" patent system. Documentation that can establish what the inventor knew and when he knew it is used to determine the true inventor. Internal Apple documentation regarding the design and development of the iPod could be used for this.

European nations tend to have a "first-to-file" system, where rights go to whoever gets the paperwork done, regardless of who actually did the inventing.

Plus, if Robert Heinlein's mere description of the water bed in Stranger In a Strange Land could be considered prior art for that invention, then it stands to reason that Apple's production of actual iPods would have to be considered prior art for Microsoft's application.

Lawyers and coders have a lot in common, but with lawyers the stakes of ego disputes are much higher. You file a complaint, he files an answer, and you go on with the war. With coding, you write some code, he fucks it up, and then you go back and fix it. It sucks, but usually nobody gets the death penalty or has to come up with $10 million to pay the awarded damages.

I'm a patent law student, so take this for what it's worth. This is not legal advice and doesn't represent a perfect understanding of the law, if such a thing even exists.

As the applications stand, Apple will likely be issued a rejection by the USPTO based on MS's prior application. Assuming Apple can demonstrate that they had invented this product first (shown through sales, and preferrably dated design drawings, schematics and such), they should overcome the USPTO rejection. At that point the USPTO would invalidate MS's patent.

As a bunch of people above have pointed out though, this only works in the US. In Europe and essentially the rest of the world, where a first-to-file system is used, Apple probably won't be so lucky. If MS beat apple to filing in any first-to-file countries, they should retain the patent even though Apple actually developed a product using the patented technology first. There are pros and cons to botht he first-to-file and first-to-invent system, but that's an argument for another time/

It'll be interesting to see if MS will license the patent to Apple, or if they'll force apple to change the interface. Neither one makes MS look particularly good, but this really could let MS get a foothold in the MP3 player market, taking the interface everyone loves so much and building it into a player of their own.

The moral of the story: patent your ideas before marketing them to the public.

So if Microsoft proves that it had the idea first, they can win. However they obviously they didn't I'm suprised that Apple hasn't destroyed their patent yet.

And taking part of a statement and twisting it's intentions around is part of how American works, check the media as well as the politicians lately? And we'll not talk about the media reporting on politicians.

So name a missing feature that you can't rationalise away the importance of. Gee.. that's a toughy.

Unfortunantly your powers of rationalisation are too strong for me, so we'll just ignore the fact that it can't deal with a hugely popular (in the geek sector) format. As for getting away from the radio, I recomend locking yourself in your basement and gibbering to yourself, it's fun and rewarding. Radio may not be perfect but there are times when it's nice to hear about what people other than yourself are thinking about. Maybe I'm spoiled in australia by having a good selection of abc channels that have no advertising, just occasionally annoying presenters.

Apple could sue you, but they'd have no case. In fact, Apple *would* sue you, and Jobs would throw a temper tantrum in some media outlet. But they'd still have no case. So long as your product wasn't marketed as an "iPod" -- or anything someone might confuse with "iPod" (so don't try "uPod" -- that ought to be legal, but it makes Apple's case go from "no case" to "not likely" -- and since they've got money and lawyers, that's a big risk.)

Microsoft could sue you, and then you'd be the one who has to deal with the patent headache... you'd win... if you didn't run out of money first. You might possibly perhaps if you're really really nice get a little help from Apple in your case, as they'd have a vested interest in invalidating the MS patent -- even though Jobs would probably want to see you burn for ripping off his iPod.